Stonesifer v. Shriver

Pearce, J., delivered the opinion of the Court. The appellee in this case, as administrator of his deceased wife, offered for passage by the Orphans’ Court for Carroll County, a first and final administration account, in which he craved allowance for the following items among others : This account was approved and passed by the Court, and the balance of the estate, $562.70, was distributed, one-half to the appellee as surviving husband, there being no children of the intestate, and the other half to her collateral relatives in due course. Subsequently, the appellant, one of these relatives, filed a petition in the Coutt, under oath, alleging that the appellee had failed to charge himself with the sum of $26.66 collected by him for the estate from one Oliver Newcomer, a debtor of said estate; and also alleging that the above-mentioned items were wrongfully allowed in said account, ²⁶ and the appellant therefore excepted to said account as passed, and prayed that the order approving and passing the same be rescinded, and that the appellee be required to restate said account, charging himself with said collection, and omitting the allowances objected to. The Court passed an order requiring the appellee to show cause why the account should not be restated as.prayed, and the appellee answered the petition, denying that the sum of $26.66 was properly chargeable in his account, and alleging that the items objected to were all properly allowed therein.

This answer does not appear to have been on oath as required by law. The appellant joined issue on this answer, and at the same time filed in Court a receipt from E. O. Weant, as attorney for the appellee, to Oliver Newcomer for $26.66 received by said attorney for the appellee as administrator of his wife from said Newcomer, and on the same day the Court passed the following order from which this appeal is taken. “The objections of Henry O. Stonesifer to the account filed and passed in this Court on the^th day of April, 1904, by Theodore Shriver, administrator of Sarah P. Shriver, deceased, having been submitted to us, after testimony having been taken and argued before us, it is this 7th day of June, 1904, ordered by the Orphans’ Court for Carroll County, that the said objections to the allowance to the various amounts set forth in said petition and objection of said Henry O. Stonesifer be and the same are hereby dismissed. And it is further ordered by this Court that the said administrator account to this Court for the said sum of $26.66 sét forth in said objections. And it is further ordered that the costs and expenses under said objection in this case, be paid out of the fund of the estate of said deceased, Sarah P. Shriver, towit, $26.66 now in the hands of said administrator, Theodore Shriver; and that the said administrator pay the cost in the statement of the supplemental account of said additional funds of $26.66.” The appellee now moves to dismiss this appeal; “1st, because there is no appeal to the Court of Appeals of Maryland from the decree or order filed in this case; and, 2nd ²⁷ because the order appealed from in this case was passed on a summary proceeding, and on testimony of witnesses, and the appellant did not give notice of his intention to appeal, and request the testimony of the witnesses to be reduced to writing as required by Art. 5, sec. 59 of the Code.” The first of these reasons is evidently based upon the ground, not expressed in the motion or brief, that the appellant’s petition is a proceeding under sec. 239 of Art. 93 of the Code, which provides specially for the disposition of petitions or bills alleging that an administrator “has concealed, or has in his hands, and has omitted to return in the inventory or list of debts, any part of his decedent’s assets.” If it could be so regarded, it would follow that the motion must prevail, since sec. 240 of Art. 93 provides that in such case either party may appeal to the Circuit Court for the County, or the Superior Court of Baltimore City, and it was held in Hignutt v. Cranor, 62 Md. 219 , that “the appeal thus provided is exclusive of all other appeals, so that in no event can an appeal in any such case be taken to the Court of Appeals under sec. 39 of Art. 5 of the Code,” now sec. 58 of that Art. If the petition in this case were confined to the item of $26.66 alleged to be omitted in the list of debts, and the administration account, the jurisdiction of the Orphans’ Court under that section would be clear, and this appeal would be necessarily dismissed.

But that petition combines with the subject-matter of which the Court has jurisdiction under that section, other independent matter of which it has no jurisdiction under that section, and the order of Court, following the petition, deals with and determines both these subject-matters. The appellant cannot, by this confusing and misjoinder of distinct matters in one petition, and in one order, confer jurisdiction upon the Court as to that one of the subjects over which jurisdiction is not given by sec. 239, nor can either party.be in this manner deprived of his appeal as to the matter improperly included in said petition, if it could be treated as filed under sec. 239. The proper course, if it were desired to confine the appeal to the Circuit Court as to the ²⁸ omitted item, would have been to confine the petition to that item, and to proceed as to the allowances objected to, in such independent petition as the petitioner might deem best suited to his purpose. The first reason for dismissing this appeal therefore cannot be sustained.

The second reason is plainly stated in the motion and brief to be, that the order appealed from was passed in a summary proceeding, and that in such case no appeal will lie unless immediate notice of intention to appeal be given, and unless the evidence has been reduced to writing and transmitted to the Appellate Court. If the proceeding were a summary proceeding, the position could not be denied. Cecil v. Harrington, 18 Md. 510 ; Cox v. Chalk, 57 Md. 571 . But this cannot be regarded as a summary proceeding.

The petition prayed the rescission of the order approving and passing the administration account, and that the administrator be required to restate the account. The Court passed an order requiring the administrator to show cause why this should not be done, and he appeared and answered. All this was directly within the ordinary powers conferred upon the Orphans’ Court by secs. 230 and 231 of Art. 93 of the Code. Muncaster v. Muncaster, 23 Md. 286 ; Cummings v. Robinson, 95 Md. 87 .

It is said in Pegg v. Warford, 4 Md. 385